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May 16, 2012

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Combined fines of £130,000 for excavator fatality

A driver was killed instantly when the mini excavator he was driving was crushed after a 32-tonne tipper lorry suddenly overturned on uneven ground while delivering 20 tonnes of aggregate to a construction site.

Leicester Crown Court heard on 11 May that Richard Kenny, 48, had been employed by J&H Construction, themselves subcontracted by principal contractor J H Hallam (Contracts), to undertake groundworks at the Waltham Centre for Pet Nutrition site near Melton Mowbray, Leicestershire, owned by Mars UK.

The court was told that on 3 October 2006, lorries had been coming in to the site to tip aggregate onto a field at the side of the site. One of the tipper trucks reversed up to the tip area and parked while the driver went to sign in. The driver met Richard Kenny while doing this and the two men walked back to their vehicles together. Mr Kenny got into the cab of his mini digger next to the lorry and was crushed to death when the lorry overturned as it lifted its back end to deposit the aggregate.

A previous workplace transport risk assessment failed to properly consider tipping operations and in particular the specific risks of vehicles overturning. The tipping area had not been adequately assessed as being safe for tipping operations, was not sufficiently level and had been poorly prepared.

Frances Bailey, the HSE inspector in charge of the long and complicated investigation that ensued, told SHP that tight, robust procedures for deliveries should have been put in place. “There should have been a banksman or supervisor making sure no-one was in the way of the tipping lorries. These lorries are well known for overturning, especially on a steep camber or uneven ground. It is vital that people are kept a safe distance,” she said.

The Inspector continued: “There should have been a second person on hand to create an exclusion zone around the vehicle during tipping, stop traffic, put up cones or signs, or simply to stand there to stop other vehicles and pedestrians going into the danger area during tipping”.

Judge Robert Brown said he was not seeking to equate the value of Mr Kenny’s life with the level of the fines that he imposed. He said that although the fine must be punitive to bring home the message that the court views the breach of health and safety regulations that led to the man’s death very seriously, both companies provide valuable employment for a number of people and he did not want to jeopardise the jobs of those employees.

J H Hallam (Contracts) of Oadby pleaded guilty to breaching s3(1) of the HSWA 1974 by failing to ensure the safety of non-employees. It was fined £80,000 and ordered to pay £20,000 in a contribution to costs.  J & H Construction of Hinckley pleaded guilty to breaching s 2(1) of the same Act by failing to ensure its employees’ safety and for failing to properly plan, organise and control the tipping of bulk materials at the site. It was fined £50,000 with £20,000 partial costs.

In mitigation, the two companies said they had pleaded guilty and apologised and sent their condolences to Mr Kenny’s family. They said the lorry that overturned had not been in excellent condition and they also said they were unable to pay large fines because of the downturn in the construction industry.

Inspector Bailey said: “In this case the principal contractor and the subcontractor failed to recognise the potential risk and regularly allowed lorries to tip without the aid of a banksman close to the site compound and visitor car park. J H Hallam (Contracts) should have been aware of the potential risk as it was involved in a previous incident where a skip lorry overturned on uneven ground.

The Inspector concluded: “The result of this case will hopefully serve as a warning to others to review their arrangements for deliveries and avoid similar tragic incidents in future.”

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12 years ago

A TBT is not much use if the load bearing strata at pre- formation and or formation level is inadequate to support such imposed loading.

This was a failure to plan for suitable access for tipping purposes.

The addition of inclinometers is best practice, but not enforced (PUWER) by the HSE or other bodies

I wonder how many tipper vehicles are fitted with such equipment, and I suspect that they are not a requirement upon new vehicles.

It will no doubt be a “risk asssessment” consideration?

12 years ago

A Banksman for the tipping operation! Not always possible in the real world? Yes the TM RA should have identified the slope and uneven ground risks, but also the drivers are supposed to be aware of their vehicle instability when tipping. Inclinometers are a better method and very cost effective. I agree there should be an exclusion zone and this should be clearly identified, but a TBT for the operator and drivers could have prevented this incident, along with closer monitoring of compliance.